Loyola University Chicago Law Journal Volume 15 Article 11 Issue 2 Winter 1984 1984 Public Employees and the First Amendment: Connick v. Myers Christine M. Arden Follow this and additional works at: http://lawecommons.luc.edu/luclj Part of the First Amendment Commons Recommended Citation Christine M. Arden, Public Employees and the First Amendment: Connick v. Myers, 15 Loy. U. Chi. L. J. 293 (1984). Available at: http://lawecommons.luc.edu/luclj/vol15/iss2/11 This Note is brought to you for free and open access by LAW eCommons. It has been accepted for inclusion in Loyola University Chicago Law Journal by an authorized administrator of LAW eCommons. For more information, please contact [email protected]. NOTES Public Employees and the First Amendment: Connick v. Myers INTRODUCTION Uninhibited debate about public issues is a basic requirement for the continued vitality of any democracy. In order to protect this principle, the first amendment guarantees citizens' rights to criticize government officials and agencies.' Effective govern- ment also depends, however, on the efficient administration of its offices and agencies by these same government officials and agencies. 2 A conflict thus may arise between government effi- ciency and the first amendment when the citizen exercising his first amendment rights is a public employee. The United States Supreme Court recently addressed the conflict between these 3 crucial interests in Connick v. Myers. Typically, this conflict arises when a public employee speaks criticially about his supervisor and the supervisor retaliates by firing the employee. 4 The employee subsequently sues to get his job back, claiming that his first amendment rights were violated by the dismissal. The government defends its actions by assert- ing that the employee's critical remarks destroyed any effective working relationship between the parties. 1. The first amendment states: "Congress shall make no law respecting an estab- lishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances." U.S. CONST. amend. I. See infra note 19. 2. Connick v. Myers, 103 S. Ct. 1684, 1691 (1983). 3. 103 S. Ct. 1684 (1983). 4. This was the fact situation giving rise to the plaintiffs claim in Connick. See also Bush v. Lucas, 103 S. Ct. 2404 (1983) (NASA aerospace engineer demoted for making statements critical of Space Center to the media); Givhan v. Western Line Consol. School Dist., 439 U.S. 410 (1979) (teacher dismissed for complaining about school's racially dis- criminatory policies); Mt. Healthy Bd. of Educ. v. Doyle, 429 U.S. 274 (1977) (teacher not rehired after he informed a radio station about principal's memo concerning teacher dress code); Pickering v. Board of Educ., 391 U.S. 563 (1968) (teacher fired for writing letter to newspaper criticizing school board); Berdin v. Duggan, 701 F.2d 909 (11th Cir. 1983) (city maintenance worker fired for suggesting to mayor that more men be added to the work crew); Barrett v. Thomas, 649 F.2d 1193 (5th Cir. 1981) (county deputies demoted Loyola University Law Journal [Vol. 15 Courts have resolved this conflict by applying a balancing test, weighing the employee's interest in free speech against the government's interest in efficiency. 5 Prior to Connick v. Myers, this test served adequately to protect both of these interests. In Connick, however, the Supreme Court tipped the scale toward the government's interests in three ways. First, the Court pre- scribed a narrow standard for matters of public concern. Second, it limited first amendment protection when speech only partially deals with a matter of public concern. Third, the Court did not require that the government prove that the employee's speech was disruptive to justify her dismissal. This note traces the background of the conflict between the free speech rights of public employees and the government's interest in efficient operation. Connick v. Myers is then exam- ined in light of this precedent. The analysis will focus on how Connick destroyed the previous fairness of the balancing test by strongly favoring the government's interest in efficiency. This note will then discuss the impact of these changes on litigation and public employee speech and, finally, will consider indica- tions of a trend in the Supreme Court's approach to public employee's first amendment rights. BACKGROUND First Amendment Rights of Public Employees: Case Law The free expression of ideas is fundamental to a democratic society.6 Political debate, essential to self-government, as well as because of their political affiliations); Schneider v. City of Atlanta, 628 F.2d (5th Cir. 1980) (prison guard transferred because she suggested a "sick out" to other guards to protest discriminatory employment practices); Tygrett v. Barry, 627 F.2d 1279 (D.C. Cir. 1980) (policeman fired because he said he supported a "sick-in"); Lindsay v. Board of Regents, 607 F.2d 672 (5th Cir. 1979) (professor dismissed for distributing questionnaire to faculty); Nebraska Dep't of Road Employees Ass'n v. Department of-Roads, 364 F. Supp. 251 (D. Neb. 1973) (engineer stated in private meeting that director of roads department was unqualified for the position); McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 29 N.E. 517 (1892) (policeman fired for soliciting money for political campaign). 5. See infra text accompanying notes 17-34. 6. The government may prohibit only obscene speech and speech which creates imminent danger. See Roth v. United States, 354 U.S. 476, 481-85 (1957) (obscene speech is not protected by first amendment); Chaplinsky v. New Hampshire, 315 U.S. 568, 573-74 (1942) (speech which creates a clear and present danger is not protected by the first amendment). 19841 Connick v. Myers 295 expressions of minor importance, are both protected by the first amendment.7 Although the government cannot generally inter- fere with the free expression of ideas, the first amendment does not prevent a private employer from firing an employee for exer- cising his right of free expression. 8 Unless the employee con- tracts to work for the employer for a specific duration, either party can terminate the employment at will, i.e., without notice and without cause.9 Recently, courts have tempered this rule by finding a variety of exceptions; 10 however, the traditional employ- ment-at-will rule survives in almost every jurisdiction in the Uni- ted States. Prior to the 1950's, government agencies, like private employ- ers, had free reign to fire their employees for discussing politics or criticizing government officials.1 2 The Supreme Court had ruled in a number of cases that because a government job was a privilege, not a right, public employees risked termination when they spoke out on political or other controversial public issues.1 3 This power to fire at will was somewhat abridged in the 1950's and 1960's by a series of Supreme Court decisions in which pub- 7. United Mine Workers v. Illinois State Bar Ass'n, 389 U.S. 217,223 (1967). 8. For cases illustrating the private employer's right to fire an employee, see Com- ment, Freedom of Speech in PrivateEmployment: Overcoming the "State Action" Prob- lem, 20 Am. Bus. L.J. 102, 103 n.5 (1982). 9. See Feinman, The Development of the Employment at Will Rule, 20 Am. J. LEGAL HisT. 118 (1976). 10. The exceptions are based on implied contract, public policy tort, and implied cov- enant of good faith and fair dealing. Note, Defining Public Policy Torts in At- Will Dis- missals, 34 STAN. L. REV. 153, 154 (1981). 11. Id. See generally Note, Contract Law: An Alternative to Tort Law as a Basis for Wrongful DischargeActions in Illinois, 12 Loy. U. CHI. LJ. 861 (1981). 12. Justice Holmes, sitting on the Supreme Judicial Court of Massachusetts, epito- mized this view in his classic statement: "The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman." McAuliff v. Mayor of New Bedford, 155 Mass. 216, 220,29 N.E. 517,517 (1892) (upholding statute prohibiting policemen from soliciting money for political purposes and becoming members of a politi- cal committee). 13. See, e.g., Adler v. Board of Educ., 342 U.S. 485 (1952) (upholding the Feinberg law, which prohibited members of subversive organizations from teaching); Garner v. Board of Pub. Works, 341 U.S. 716 (1951) (upholding a regulation requiring city employees to swear they were not members of the Communist Party); United Pub. Workers of Am. v. Mitchell, 330 U.S. 75 (1947) (upholding Hatch Act, which prohibits government workers from political campaigning); United States v. Wurzbach, 280 U.S. 396 (1930) (upholding the Federal Corrupt Practices Act, which disallowed public employees from soliciting money for political reasons); ExparteCurtis, 106 U.S. 371 (1882) (upholding statute prohibit- ing government employees from contributing or receiving money for political campaigns). Loyola University Law Journal [Vol. 15 lic employees successfully challenged job-required loyalty oaths. 14 The results of these cases, however, still permitted an employee to be fired if his speech disrupted the efficient operation of a 14. Many of these cases dealt with loyalty oaths designed to determine whether an employee was a member of a subversive (particularly Communist) group. The Supreme Court eventually struck down most loyalty oaths because they infringed on employees' first amendment rights to speak out on broad political issues. See, e.g., Keyishan v. Board of Regents, 385 U.S. 589, 592-604 (1967) (statute barring employment to teachers who belong to subversive organizations held invalid); Elfbrandt v.